By Mr. MURKOWSKI:
S. 964. A bill
to direct a property conveyance in the State of California; to the Committee
on Energy and Natural Resources.

THE WARD VALLEY LAND
TRANSFER ACT

Mr. MURKOWSKI. Mr. President, today I rise to introduce legislation
designed to end an impasse that we've endured for far too long--the
stalemate over the Ward Valley low-level radioactive waste facility
and efforts to implement an important Federal law--the low level radioactive
waste policy amendments. I am doing this today because of documents that have recently
come to light under the Freedom of Information Act and due to the continuing
differences between the words spoken under oath by a Presidential nominee
before my committee and his actions to date. For more than
10 years, the State of California acting in complete accordance with
Federal law and in cooperation with responsible Federal agencies, has
been attempting to open a low-level radioactive waste repository at
a Mojave Desert site in Ward Valley. The long, tortured process costing more that $40 million has included
a statewide search resulting in the selection of a virtually unpopulated
desert valley; two environmental impact statements under the National
Environmental Policy Act; two biological opinions under the Endangered
Species Act; and judicial review including theCalifornia Supreme Court.

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From the outset, the State has been dogged by the lawsuits and protests
of a small fringe group of activists.But in the end, California has
met every test.Ward Valley was found to be safe, and the State issued
a license containing more than 130 carefully developed safety and environmental
stipulations.Consistent with its own independent evaluations, the Department
of the Interior agreed to sell the land to California for the Ward Valley
site in January 1993. But shortly thereafter, the Department of the Interior abruptly
reversed itself, demanding a series of discretionary studies and reviews
that, 4 years later, still have no end in sight. Specifically,
the Department of the Interior asked the National Academy of Sciences
to review seven technical issues related to the site. Specifically,
the Department of the Interior asked the National Academy of Sciences
to review seven technical issues related to the site. In May 1995,
the Academy's report was released. The report was highly favorable to
the site selection and each of the seven issues. As a consequence, Interior
Secretary Babbitt indicated that he intended to transfer the site. Two more months
passed. On July 27, 1995, the President's nominee to be the Deputy
Secretary of the Interior, Mr. John Garamendi, appeared before the Energy
and Natural Resources Committee and testified under oath, that the Ward
Valley issue ``will be satisfactorily culminated shortly * * * and I
believe it should be.'' With that testimony in mind, I recently reviewed documents made
available under the Freedom of Information Act. With the benefit
of those documents and other evidence of the systematic delay fostered
by the Department of the Interior to block Ward Valley, I have reached
the sad conclusion that Congress must intervene to end this stalemate.
Before I go
into the disturbing history of this issue and the content of the documents
uncovered by the Freedom of Information Act request, some background
is important. There is a tremendous difference between low level radioactive
waste and the spent fuel issue the Senate has been debating over the
past 2 weeks. Spent fuel, of course, is the high level waste from nuclear
power reactors. Low level radioactive
waste, on the other hand, is composed of items such as medical gowns,
biomedical wastes, filters, resins and similar wastes generated from
cancer treatment, biomedical research, and other activities. Low level radioactive
waste is generated during cutting-edge research that may help us find
a cure for AIDS. Low level radioactive
waste is generated from the development of new drugs and cancer therapies.
Low level radioactive waste is generated by the high tech
and biotech industry in the quest for new products and services that
will be at the foundation of our 21st century economy. While it also
includes waste from nuclear power production, Congress wisely placed
specific limits on the levels which are a State responsibility. When the Senate
was debating the fate of high-level spent fuel, we clearly had a situation
where the State of Nevada opposed a repository. The Governor of Nevada
opposed it But the low level waste issue is vastly different. Governor
Wilson of California supports Ward Valley. The State of
California has been working on plans open a low level waste repository
in California for the past decade. They have done
so in complete accordance with Federal law, which assigns responsibility
for disposal of a specified portion of low level radioactive waste to
the States. Governor Wilson understands that thousands of jobs in California,
particularly among the high-tech and biotech industries, absolutely
depend on having dependable access to a safe, secure facility for low
level radioactive waste. Governor Wilson understands that countless lives might be saved
through the cancer breakthrough or AIDS cure that the use of radioactive
materials might bring. Governor Wilson
also understands that low level radioactive waste is currently being
stored at hundreds of urban locations all across California. It's being
stored in basements and in parking lot trailers. It's being
stored in warehouses and temporary shelters. It's on college
campuses, in residential neighborhoods, and in hospitals. And
as long as the waste is in these temporary locations in populated areas,
it is subject to accidental radioactive releases from fire, earthquakes,
and floods. Governor Wilson is understandably concerned about the health and
safety of Californians. He is frustrated by the delays California has
faced in trying to get this facility open. So am I. I am frustrated by the fact that the President's nominee to be the
Deputy Secretary of the Interior, Mr. John Garamendi, appeared before
the Energy and Natural Resources Committee on July 27, 1995 and testified
under oath, that the Ward Valley issue should and would be quickly resolved.
After that
testimony, seven months passed. Nothing happened.
On February 15, 1996, Deputy Secretary Garamendi indicated that
``new information'' related to a different low-level radioactive waste
site at Beatty, Nevada, required further testing at the Ward Valley
site and the preparation of yet another Supplemental Environmental Impact
Statement (SEIS).

Literally one day before his announcement, the Director of the U.S.
Geological Survey said that linkages between the Beatty site and Ward
Valley were ``too tenuous to have much scientific value.'' But the Deputy
Secretary ignored the Director's scientific advice. In a public news
conference, Deputy Secretary Garimendi indicated that the additional
testing would take about four months, and that the preparation of a
Supplemental Environmental Impact Statement (SEIS) would take about
a year. On August 5,
1996, months after we expected the testing to be complete, an official
of the lab Interior selected to perform the testing said, ``Interior
Department officials have yet to submit a work plan . . . on the testing
they want done.'' During this same time frame, Interior Department officials were
distributing documents to the public containing factually incorrect
information taken verbatim from Ward Valley opponents, even though accurate
information was readily available from the Department of Energy. It now appears
that Interior made no effort to check the facts with DOE with respect
to the veracity of the information it was providing to the public. Recently,
the Governor of California made me aware of documents he obtained through
Freedom of Information Act (FOIA) requests. These documents reveal the
following: Despite the understandable lack of radiological expertise
resident in the Department of the Interior, the Department has made
no effort to communicate with the federal agency with primary expertise
and jurisdiction in the matter--the Nuclear Regulatory Commission. The professional,
non-political, radiological experts of the Department of Energy have
indicated that: ``Interior's concern that the [Ward Valley] facility
lacks an environmental monitoring system has no basis in fact;'' the
Department of the Interior is attempting to subvert the National Academy
of Sciences recommendations with respect to the timing of the tests
and nature of the tests to be performed; the Department of the Interior
has understated the costs and the time required for the conduct of the
tests; and the tests the Department of the Interior has outlined will
result in additional litigation regardless of their outcome.

Mr. President, these documents are plain on their face. But
they are particularly troubling since they show the vast difference
between the words spoken by Mr. Garamendi in his confirmation hearing,
and the actions he has taken since his confirmation. Let's again
review the facts: Deputy Secretary Garamendi testified under oath that the
Ward Valley issue would be, and should be, quickly resolved. He then called
for additional testing that did not conform to the recommendations of
the National Academy of Sciences, creating a false linkage in the public's
mind between the

[[Page S6498]]

Beatty site and the
Ward Valley site, despite the fact that his own USGS Director said that
such a linkage could not be justified by the science. Deputy Secretary Garamendi spread misinformation about the composition
of the radioactive waste stream in Department press materials supplied
by project opponents, making no effort to check their veracity with
the Department of Energy, the Nuclear Regulatory Commission, or any
other agency with expertise in such matters. Deputy Secretary
Garamendi persistently failed to get the testing underway, which he
later blamed on the threats of a lawsuit that were not, in fact, made
until long after the time he said the tests would be complete. Indeed, the
Department of the Interior has designed a process specifically intended
to foster further delay. Mr. President,
over the past month or so there has been a new twist that is frankly
the straw that breaks the camel's back. The State of
California, in its continuing efforts to achieve a compromise, has agreed
to perform additional testing pursuant to the National Academy of Sciences
guidelines prior to the federal land transfer. Let me make
this clear: California has always agreed to do the additional testing
. . . the issue of dispute is that Interior insisted the testing be
done prior to the land transfer, while California and the National Academy
of Sciences said the testing would be best accomplished after the land
transfer. So California
has now agreed to perform additional testing prior to the land transfer.
They have clearly made efforts to compromise. I received
a letter from Deputy Secretary Garamendi, dated February 27, 1997, which
exclaimed that the delays at Ward Valley have gone on long enough, and
that welcomed the decision by the State of California to undertake additional
testing. When
I saw that letter. I thought to myself: Finally, this issue will be
resolved. I was shocked by what happened next: The BLM produced
an administrative determination, allegedly two years old that nobody
had ever seen, that will not permit California to undertake the testing
that Interior insists must be undertaken prior to the land transfer!
They have California in a ``Catch-22.'' BLM informed
the California Department of Health Services that they could not proceed
with the testing without a new permit from the BLM and yet another biological
consultation with the U.S. Fish and Wildlife Service with respect to
the Desert Tortoise. The BLM based this requirement for a new permit on an ``administrative
determination,'' allegedly issued two years ago, which limits surface
disturbance associated with pre-construction testing. But further examination
revealed several points about this document: This old administrative
determination was unknown to the California Department of Health Services,
U.S. Ecology, and even the local BLM District Office until weeks ago.
The local BLM office is unable to provide any evidence that this
``administrative determination'' was provided to any of the parties
whose actions it supposedly limits. The administrative
determination is absurd on its face. The U.S. Fish and Wildlife Service
has determined that the 90 acres of surface disturbance associated with
the construction and operation of the Ward Valley facility will not
jeopardize the desert tortoise or its habitat. Moreover, under current
BLM guidelines, ten acre mining operations on other BLM land would not
trigger the need for a biological consultation if certain desert tortoise
protection measures were incorporated into the plan submitted to BLM.
Indeed, five acre mining operations would not even require the applicant
to submit a tortoise protection plan for approval. Yet, it is BLM's
sudden contention that less than 5 acres of surface disturbance associated
with testing will require yet another full biological consultation by
the U.S. Fish and Wildlife Service. Clearly, Mr.
President, this latest obstruction, and the reasons cited for it, make
no sense in the context of the various other permits and administrative
determinations that have been previously granted at the site. The fact that
this administrative decision suddenly surfaced in the midst of state
planning to undertake the new tests is highly unusual-perhaps even worthy
of investigation by the Inspector General. Mr. President,
earlier this year I asked the General Accounting Office to investigate
this matter. That investigation is now underway. At this very moment,
GAO auditors are reviewing documents in the District BLM office in California
and at Department of Interior headquarters here in Washington. The GAO report will not be complete until July 15, but let me simply
say that their preliminary findings appear to agree with my understanding
of the facts. What we are seeing at the Department of the Interior is
a blatant display of bad faith and obstructionism with regard to California's
efforts to implement Federal law through development of the Ward Valley
site. I am particularly distressed by this, particularly in light of the
words spoken by Mr. Garamendi at his confirmation hearing. Mr. President,
the legislation I am introducing today would convey the BLM land at
Ward Valley to California as soon as a check for the fair market value
of the land plus $100 is tendered to the Secretary of the Treasury,
after the State of California formally tenders a promise to conduct
the additional testing as outlined by the National Academy of Sciences.
It's a simple
bill. California agrees to do the testing outlined by the National Academy
of Sciences, California gets its site, and the taxpayer gets fair market
value for the land. I am willing to consider alternative approaches, but my bottom line
is a quick and satisfactory resolution to this issue by qualified experts
rather than political activists. I am willing
to entertain negotiated compromises. I am willing
to entertain alternative legislative approaches. I am not willing
to entertain further delay. In closing,
Mr. President, let me share a story that I find particularly rich in
irony: Interior Secretary Babbitt, while the Governor of Arizona, was deeply
concerned about the difficulty of the Federal Government to provide
for adequate low-level radioactive waste disposal sites. He was asked
by the National Governors' Association to chair a task force to look
into the problem. The Babbitt task force recommended that the responsibility for lowlevel
radioactive waste management be given to the States. In 1981, Governor
Babbitt wrote that ``the siting of a low level nuclear waste facility
involves primarily state and local issues that are best resolved at
the government level closest to those affected.'' There was another
Governor at the time who was active in the National Governor's Association
and supported this approach: The Governor of Arkansas. His name was
Bill Clinton. Congress listened to these Governors, and passed the Low
Level Radioactive Waste Policy Act which gave the States the responsibility
for low level radioactive waste management. California
is the first State to license a facility under the Low Level Radioactive
Waste Policy Act. And who are the Federal authorities who are today frustrating
California's attempt to follow the law and open its site? None
other than Mr. Babbitt and his Deputy at the Department of the Interior,
himself a former California state official. What an irony
that former State officials would declare a State unworthy of trust
in carrying out its congressionally assigned duties and responsibilities.
What a difference
a few years in Washington can make.